Citation Nr: 0207900
Decision Date: 07/16/02 Archive Date: 07/19/02
DOCKET NO. 99-17 650 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease (COPD) as due to nicotine dependence in
service for accrued benefits purposes.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. L. Krasinski, Counsel
INTRODUCTION
The veteran served on active duty from July 1943 to November
1945. He died in September 1997. The appellant is the
veteran's daughter.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a February 1999 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina, that denied entitlement to
chronic obstructive pulmonary disease due to nicotine
dependence for accrued benefits purposes.
This matter was remanded to the RO in November 2000.
FINDINGS OF FACT
1. The veteran died on September [redacted], 1997; the cause of the
veteran's death as shown on the death certificate was chronic
obstructive pulmonary disease due to paroxysmal atrial
fibrillation.
2. The veteran's claim as to the issue of entitlement to
service connection for chronic obstructive pulmonary disease
due to nicotine dependence was pending at the time of his
death.
3. The appellant filed a claim of entitlement to accrued
benefits in March 1998; thus, her claim was timely filed.
4. Nicotine dependence was not manifested in service.
5. Chronic obstructive pulmonary disease was not manifested
in service.
CONCLUSIONS OF LAW
1. Chronic obstructive pulmonary disease and nicotine
dependence were not incurred in or aggravated by the
veteran's active service. 38 U.S.C.A. § 1110 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2001).
2. The criteria for entitlement to service connection for
chronic obstructive pulmonary disease due to nicotine
dependence for the purpose of accrued benefits, have not been
met. 38 U.S.C.A. § 5121 (West 1991 & Supp. 2001); 38 C.F.R.
§ 3.1000 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Pertinent Law and Regulations
Service connection
In general, applicable laws and regulations state that
service connection may be granted for disability resulting
from a disease or injury incurred in or aggravated by
military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991);
38 C.F.R. § 3.303 (2001).
Service connection may also be granted for a disease first
diagnosed after discharge when all of the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2001).
Secondary service connection shall be awarded when a
disability is proximately due to, or the result of a service-
connected disease or injury. 38 C.F.R. § 3.310(a) (2001).
Specific Guidelines: Tobacco Use
A precedential opinion by the VA General Counsel, which is
binding upon the Board pursuant to 38 U.S.C.A. § 7104(c)
(West 1991 and Supp. 2001), was prepared to clarify when
entitlement to benefits may be awarded based upon in-service
tobacco use. This opinion determined that direct service
connection of disability may be established if the evidence
establishes that injury or disease resulted from tobacco use
in line of duty in the active military, naval, or air
service. VAOPGCPREC 2-93 (January 1993).
The General Counsel issued a clarification of this opinion in
June 1993, and stated that the opinion does not hold that
service connection will be established for a disease related
to tobacco use if the affected veteran smoked in service, but
rather states that any disability allegedly related to
tobacco use which is not diagnosed until after service would
not preclude establishment of service connection; however, it
must be demonstrated that the disability resulted from use of
tobacco during service, and the possible effect of smoking
before or after service must be taken into consideration.
VAOPGCPREC 2-93 (June 1993). (Explanation of VAOPGCPREC 2-93
dated January 1993).
With regard to the issue of secondary service connection, a
precedential opinion by the VA General Counsel was issued to
clarify when service connection may be granted for tobacco-
related disability on the basis that such disability is
secondary to nicotine dependence which arose from a veteran's
tobacco use during service. Specifically, the VA General
Counsel found that a determination as to whether service
connection for disability or death attributable to tobacco
use subsequent to military service should be established on
the basis that such tobacco use resulted from nicotine
dependence arising in service, and therefore is secondarily
service connected pursuant to 38 C.F.R. § 3.310(a), depends
upon affirmative answers to the following three questions:
(1) whether nicotine dependence may be considered a disease
for purposes of the laws governing veterans' benefits, (2)
whether the veteran acquired a dependence on nicotine in
service, and (3) whether that dependence may be considered
the proximate cause of disability or death resulting from the
use of tobacco products by the veteran. If each of these
three questions is answered in the affirmative, service
connection should be established on a secondary basis. These
are questions that must be answered by adjudication personnel
applying established medical principles to the facts of
particular claims. The determination of whether a veteran is
dependent on nicotine is a medical issue. Additionally, on
the issue of proximate cause, if it is determined that, as a
result of nicotine dependence acquired in service, a veteran
continued to use tobacco products following service,
adjudicative personnel must consider whether there is a
supervening cause of the claimed disability or death which
severs the causal connection to the service-acquired nicotine
dependence. Such supervening causes may include sustained
full remission of the service-related nicotine dependence and
subsequent resumption of the use of tobacco products,
creating a de novo dependence, or exposure to environmental
or occupational agents. VAOPGCPREC 19-97 (May 1997).
In the May 1997 General Counsel Opinion discussed above, it
was noted that in a May 5, 1997 memorandum, the Under
Secretary for Health, relying upon the criteria set forth in
VAOPGCPREC 67-90 (O.G.C. Prec. 67-90), stated that nicotine
dependence may be considered a disease for VA compensation
purposes. The General Counsel made the following statement:
assuming the conclusion of the Under Secretary for Health
that nicotine dependence may be considered a disease for
compensation purposes is adopted by adjudicators, secondary
service connection may be established, under the terms of 38
C.F.R. § 3.310(a), only if a veteran's nicotine dependence,
which arose in service, and resulting tobacco use may be
considered the proximate cause of the disability or death
which is the basis of the claim. Therefore, the two
principal questions which must be answered by adjudicators in
resolving a claim for benefits for tobacco-related disability
or death secondary to nicotine dependence are: (1) whether
the veteran acquired a dependence on nicotine during service;
and (2) whether nicotine dependence which arose during
service may be considered the proximate cause of disability
or death occurring after service. VAOPGCPREC 19-97 (May
1997).
With regard to the first question, the Opinion held that the
determination of whether a veteran is dependent on nicotine
is a medical issue. It noted that DSM-IV at 243, provided
that the criteria for diagnosing substance dependence are
generally to be applied in diagnosing nicotine dependence.
Under those criteria, nicotine dependence may be described as
a maladaptive pattern of nicotine use leading to clinically
significant impairment or distress, as manifested by three or
more of the following criteria occurring at any time in the
same 12-month period:
(1) tolerance, as manifested by the absence of nausea,
dizziness, and other characteristic symptoms despite use of
substantial amounts of nicotine or a diminished effect
observed with continued use of the same amount of nicotine-
containing products;
(2) withdrawal, marked by appearance of four or more of the
following signs within twenty-four hours of abrupt cessation
of daily nicotine use or reduction in the amount of nicotine
used:
(a) dysphoric or depressed mood;
(b) insomnia;
(c) irritability, frustration, or anger;
(d) anxiety;
(e) difficulty concentrating;
(f) restlessness;
(g) decreased heart rate; or
(h) increased appetite or weight gain; or by use of
nicotine or a closely related substance to relieve or
avoid withdrawal symptoms;
(3) use of tobacco in larger amounts or over a longer period
than was intended;
(4) persistent desire or unsuccessful efforts to cut down or
control nicotine use;
(5) devotion of a great deal of time in activities necessary
to obtain nicotine (e.g., driving long distances) or use
nicotine (e.g., chain-smoking);
(6) relinquishment or reduction of important social,
occupational, or recreational activities because of nicotine
use (e.g., giving up an activity which occurs in smoking-
restricted areas); and
(7) continued use of nicotine despite knowledge of having a
persistent or recurrent physical or psychological problem
that is likely to have been caused or exacerbated by
nicotine. Id. at 181, 243-45.
The Transportation Equity Act for the 21st Century, dated
June 9, 1998, amended 38 U.S.C. §§ 1110 and 1131 to prohibit
the payment of VA compensation for a disability resulting
from the use of tobacco products. The Internal Revenue
Service Restructuring and Reform Act, dated July 22, 1988,
struck out the provision in the Transportation Equity Act for
the 21st Century which prohibited payment of compensation to
veterans for disability which is a result of tobacco
products, and added 38 U.S.C. § 1103 which prohibits service
connection of death or disability on the basis that it
resulted from disease or injury attributable to the use of
tobacco products during the veteran's active service. The
Internal Revenue Service Restructuring and Reform Act does
not preclude service connection for disease or injury which
became manifest during service or during an applicable
presumptive period and is applicable only to claims filed
after June 9, 1998.
Accrued Benefits
Under applicable criteria, upon the death of a veteran,
periodic monetary benefits (e.g., compensation for service-
connected disability) to which the veteran was entitled on
the basis of evidence in the file at the date of death, and
due and unpaid for a period of not more than two years prior
to death, may be paid to the children of the veteran.
38 U.S.C.A. § 5121 (West 1991); 38 C.F.R. § 3.1000 (2001).
See generally Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998),
cert. denied, 119 S. Ct. 90 (1998).
Even though the claim for accrued benefits under 38 U.S.C.A.
§ 5121 is a matter separate from the veteran's claims (since
it is based upon a separate statutory entitlement of the
survivor for which an application must be filed in order to
receive benefits), it is at the same time derivative of the
veteran's claims, in that the claimant's entitlement is based
upon the veteran's entitlement. See Zevalkink v. Brown,
6 Vet. App. 483, 489-90 (1994); aff'd, 102 F.3d 1236 (Fed.
Cir. 1996); cert. denied, 117 S. Ct. 2478 (1997) (holding
that "the substance of the survivor's claim is purely
derivative from any benefit to which the veteran might have
been 'entitled' at his death [and gives the survivor] the
right to stand in the shoes of the veteran and pursue his
claim after his death."
The Board's primary analysis in determining the appellant's
claim for accrued benefits must be one that considers the
underlying claim, in this case, entitlement to service
connection for chronic obstructive pulmonary disease.
However, the evidence used to evaluate this claim for the
purpose of the adjudicating the appellant's accrued benefits
claim must have been in the veteran's file at the time of his
death; and the appellant must have filed a claim for such
benefits within one year of his death. 38 C.F.R.
§ 3.1000(a), (c) (2001); Zevalkink, supra, at 493.
Duty to assist
During the pendency of this claim, the Veterans' Claims
Assistance Act of 2000 (VCAA) was signed into law. This
legislation is codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West Supp. 2001). It essentially
eliminates the requirement that a claimant submit evidence of
a well-grounded claim, and provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim, but is not required to provide assistance to a
claimant if there is no reasonable possibility that such
assistance would aid in substantiating the claim. It also
includes new notification provisions. Specifically, it
requires VA to notify the claimant and the claimant's
representative, if any, of any information, and any medical
or lay evidence, not previously provided to the Secretary
that is necessary to substantiate the claim. As part of the
notice, VA is to specifically inform the claimant of which
portion, if any, of the evidence is to be provided by the
claimant and which part, if any, VA will attempt to obtain on
behalf of the claimant.
Regulations implementing the VCAA are now published at
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) (to be
codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326).
Except as specifically noted, the new regulations are
effective November 9, 2000.
Standard of Proof
Once the evidence has been assembled, it is the Board's
responsibility to evaluate the evidence. 38 U.S.C.A.
§ 7104(a). The Secretary shall consider all information and
lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A.
§ 7105; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski,
1 Vet. App. 49, 54 (1990), the Court stated that "a veteran
need only demonstrate that there is an 'approximate balance
of positive and negative evidence' in order to prevail." To
deny a claim on its merits, the evidence must preponderate
against the claim. See also Alemany v. Brown, 9 Vet. App.
518, 519 (1996).
Factual Background
Service medical records do not reflect a diagnosis of
nicotine dependence. The service medical records do not
reflect findings of tobacco use. The November 1945
separation examination indicates that the veteran's lungs
were clear.
A November 1949 VA examination report indicates that
examination of the respiratory system revealed no pathology.
An October 1996 VA treatment record reveals that the veteran
had a smoking history of one and a half packs a day for 55
years.
On July 30, 1997, the veteran's informal claim for
entitlement to compensation was received by the RO.
In an August 1997 statement, the veteran's representative
indicated that the veteran wanted to file a claim for service
connection for nicotine dependence and service connection for
chronic obstructive pulmonary disease. The representative
indicated that the veteran dated his cigarette smoking to his
military service.
In an August 1997 statement the veteran's physician, Dr. C.C.
stated that he had been the veteran's personal physician
since 1968 and the veteran has suffered progressive, chronic
obstructive pulmonary disease clearly related to tobacco
addition. Dr. C.C. stated that the veteran dated his
cigarette smoking to his military service.
In August 1997, the veteran's formal claim for entitlement to
service connection for chronic obstructive pulmonary disease
due to smoking was received.
VA hospital records for admission from August 28, 1997 to
September 5, 1997 indicate that the veteran had a past
medical history significant for chronic obstructive pulmonary
disease and tobacco abuse.
On September 5, 1997, the veteran died. The death
certificate indicates that the cause of death was chronic
obstructive pulmonary disease due to paroxysmal atrial
fibrillation.
The appellant's claim for entitlement to service connection
for chronic obstructive pulmonary disease as due to nicotine
addiction for accrued benefits purposes was received on March
5, 1998.
Analysis
Initial Matters: Duty to Assist
After having carefully reviewed the record on appeal, the
Board has concluded that the requirements of the VCAA have
been satisfied with respect to the issue on appeal.
Specifically, VA fulfilled its duty to notify the appellant
of the necessary information and evidence regarding her claim
on appeal. In a September 1999 statement of the case and in
an October 2001 supplemental statement of the case, the RO
notified the appellant of the pertinent law and regulations
and advised the appellant of the evidence that was considered
in the claim.
The Board finds that the RO fulfilled its duty to assist the
appellant in obtaining evidence. An application for accrued
benefits is based upon the evidence of record at the time of
the veteran's death. This evidence is before the Board.
The Board has carefully considered the provisions of the VCAA
in light of the record on appeal, and finds that the
development of the claim has been consistent with the
provisions of the new law. Under these circumstances, a
remand of this matter for further development would not avail
the appellant or aid the Board's inquiry, and would only
serve to unnecessarily delay a decision. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991).
When the Board addresses in its decision a question that has
not been addressed by the RO, it must consider whether the
appellant has been given adequate notice to respond and, if
not, whether he or she has been prejudiced thereby. See
Bernard v. Brown, 4 Vet. App. 384 (1993). The appellant's
claim has been adjudicated by the RO under the same statutory
and regulatory criteria which must be applied by the Board.
Accordingly, the Board does not believe that a remand for re-
adjudication is required under the VCAA or otherwise.
The Board also finds that the RO complied with the directives
from the November 2000 Board remand. Cf. Stegall v. West, 11
Vet. App. 268 (1998). The RO re-adjudicated the claim as
directed.
Discussion
Upon the death of a veteran, periodic monetary compensation
under law administered by the Secretary to which an
individual was entitled at death under existing ratings or
decisions, or those based on evidence in the file at the date
of death, and due and unpaid for a period of not more than
two years prior to death, may be paid to the extent necessary
to reimburse the person who bore the expense of last sickness
and burial. 38 U.S.C.A. § 5121 (West 1991); 38 C.F.R.
§ 3.1000 (2001).
In Jones, supra, the United States Court of Appeals for the
Federal Circuit construed 38 U.S.C.A. § 5121 together with
38 U.S.C.A. § 5101(a) (West 1991) and concluded that in order
for a surviving spouse to be entitled to accrued benefits,
the veteran must have had a claim pending at the time of his
death for such benefits or else be entitled to them under an
existing rating decision. Jones v. West, 136 F.3d 1296, 1299
(Fed. Cir. 1998). The veteran died in September 1997, while
his claim for entitlement to chronic obstructive pulmonary
disease due to nicotine dependence was still pending.
Under 38 U.S.C.A. § 5121(c), the only requirement imposed
regarding a claim for accrued benefits is that the
application "must be filed within one year after the date of
death." 38 U.S.C.A. § 5121(c) (West 1991). The Board notes
that the appellant in this case met the statutory requirement
by submitting a claim for accrued benefits in March 1998, 6
months after the veteran's death.
As will be discussed in detail below, the Board finds that
service connection for chronic obstructive pulmonary disease
due to nicotine dependence was not warranted by the veteran
at the time of his death. Therefore, and for the reasons
articulated below, the appellant's claim for service
connection for chronic obstructive pulmonary disease as due
to nicotine dependence for the purposes of accrued benefits,
is denied.
The Board notes that the appellant filed the claim for
accrued benefits based on the veteran's claim for service
connection for chronic obstructive pulmonary disease as due
to nicotine dependence in service in March 1998.
Consequently, VAOPGCPREC 2-93 (June 1993) and VAOPGCPREC 19-
97 (May 1997) apply, and 38 U.S.C.A. § 1103 is not
applicable.
The veteran argued and the appellant now argues that the
veteran developed chronic obstructive pulmonary disease due
to nicotine dependence that the veteran incurred in service.
The Board notes that the two principal questions which must
be answered by adjudicators in resolving a claim for benefits
for tobacco-related disability or death secondary to nicotine
dependence are: (1) whether the veteran acquired a dependence
on nicotine during service; and (2) whether nicotine
dependence which arose during service may be considered the
proximate cause of disability or death occurring after
service. With regard to the first question, determination of
whether a veteran is dependent upon nicotine is a medical
issue. See VAOPGCPREC 19-97.
There is medical evidence which supports the conclusion that
the veteran's chronic obstructive pulmonary disease developed
secondary to the veteran's nicotine dependence and long-term
smoking of tobacco. In an August 1997 statement, Dr. C.C.,
the veteran's physician, stated that the veteran had
progressive chronic obstructive pulmonary disease clearly
related to the veteran's tobacco addiction. Thus, the only
question that remains to be resolved is whether the veteran's
nicotine dependence arose during service. See VAOPGCPREC 19-
97.
The evidence "in the file" at the time of the veteran's
death does not establish that the veteran's nicotine
dependence was acquired during service. The service medical
records do not reflect a diagnosis of nicotine dependence.
There is no indication in the service medical records that
the veteran abused tobacco. The only medical evidence that
the veteran had a nicotine addiction is dated in 1996 and
1997. Dr. C.C.'s statement dated in August 1997 indicates
that the veteran had tobacco addiction. However, he did not
indicate when the addiction was incurred. VA hospital
records dated in 1997 indicate that the veteran had a history
of tobacco abuse; however the treatment records do not
indicate when the abuse started.
The Board also notes that an October 1996 VA treatment record
indicates that the veteran had a 55 year history of smoking.
This finding would place the beginning of the veteran's
cigarette smoking almost two years prior to his entrance into
service in July 1943.
In the August 1997 statement, Dr. C.C. indicated that the
veteran dated his cigarette smoking to service.
Additional evidence, including wartime letters written by the
veteran's brother, and information on nicotine addiction in
general, was not "in the file" at the time of the veteran's
death, and may not be considered for the purposes of a claim
for accrued benefits. See 38 U.S.C.A. § 5121.
As noted above, medical evidence is required to show that a
veteran incurred nicotine dependence in or due to service.
See Espiritu v. Derwinski, 2 Vet. App. 492 (1992); VAOPGCPREC
19-97. Nicotine dependence is a psychiatric disorder and a
medical diagnosis is required to confirm its existence. It
is not sufficient that the veteran merely states that he
began smoking in service and that he continued to smoke since
that time. The veteran and other lay persons are competent
to provide an account of the veteran's symptoms; however,
"the capability of a witness to offer such evidence is
different from the capability of a witness to offer evidence
that requires medical knowledge." Espiritu v. Derwinski, 2
Vet. App. 492 (1992). The veteran does not possess the
technical or specialized knowledge to provide a probative
conclusion with respect to the issue of whether he currently
has a diagnosis of nicotine dependence that was acquired in
service. See Espiritu, supra. The Board is not qualified to
express a competent medical opinion as to whether the veteran
has a psychiatric condition such as nicotine dependence. See
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
Accordingly, as there is no competent medical evidence to
establish a diagnosis of nicotine dependence in service or
relate the nicotine dependence to the veteran's period of
service, the claim for service connection for chronic
obstructive pulmonary disease due to nicotine dependence for
accrued benefits purposes is denied.
The claim for entitlement to service connection for chronic
obstructive pulmonary disease for accrued benefits purposes
also fails on a direct basis. There is no evidence of
chronic obstructive pulmonary disease in service. Service
medical records indicate that upon separation examination in
November 1945, the veteran's lungs were clear. A lung
disorder was not diagnosed. The earliest diagnosis of
chronic obstructive pulmonary disease, from the evidence of
record at the time of the veteran's death, was in January
1996. This diagnosis was made 51 years after the veteran
separated from service. There is no medical evidence of
record which medically relates the chronic obstructive
pulmonary disease to the veteran's period of service. Thus,
service connection for chronic obstructive pulmonary disease
on a direct basis is not warranted. Therefore, the claim for
service connection for chronic obstructive pulmonary disease
for accrued benefits purposes is denied.
ORDER
Entitlement to service connection for chronic obstructive
pulmonary disease due to nicotine dependence, for the purpose
of accrued benefits, is denied.
J. E. Day
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.